The Best Interests of the Child

• The 1979 film "Kramer vs. Kramer" brought to life a custody battle in which a young mother suddenly returns after abandoning her young child with her ex-husband for a personal sabbatical. Relying on the "Tender Year's Doctrine"--the theory that a young child is best served in the custody of the mother--and assaults on the character of her ex, Mrs. Kramer wins custody. But she would not be granted the same latitude in today's courts.
  
  Contemporary courts give precedence to the rights of the child over the desires of the parents. The phrase "best interest of the child" is peppered throughout numerous states' laws, which have also replaced the outdated language of "joint custody" with friendlier terms such as "joint parenting time" and "decision-making duties" in lieu of "legal custody." While this language hasn't been widely adopted by embittered divorced couples, who still view court hearings regarding parenting time as battles over who "gets" the child, it does reflect the change in the legal point of view. Most states agree that it is in the best interest of a child to have a close, ongoing relationship with both parents, except in the most extreme circumstances. However, states differ on how to handle custody arrangements when parents cannot come to an agreement; some states presume that a child is best served in the residential care of one parent while other states presume a joint arrangement.
  
  Gender no longer decides who receives more or less parenting time; very few states adhere to the notion that children are best served by living solely with their mother. However, there are general provisions that courts scrutinize when determining what is best for a child. The wishes of each parent about parenting time are a consideration but so are those of a child old enough to express her desires to the court. The court will consider the physical and emotional capacity of each parent, his or her residential and employment stability, which parent acted as the primary caretaker during the marriage and the nature of the child's relationship with brothers and sisters or other family members in the home (including potential stepparents).
  
  The child's adjustment to a certain home, school and community also determines which parent gets more time with the child. In circumstances where parents live very close to each other, the time they share with their child may be equal. A large factor the court will consider is the ability of each parent to foster and encourage a healthy relationship between the child and the other parent.
  
  

Parenting Plans

• The presumption in most states is that both parents will share not only parenting time but also their child's legal decisions. The changes in the approach to child custody gave rise to what is called the "parenting plan." Some states have statutes that require both parents to submit a parenting plan prior to a decision regarding custody while other states give courts the discretion to require parents to submit a parenting plan if they feel this is necessary. This modern approach to cooperative parenting gives divorcing couples an opportunity to work together and come to an agreement with respect to their individual parental rights and duties.
  
  In addition to how long and when the child stays at a parent's residence during the course of a week, month or year, parenting plans determine how each parent will share in making legal decisions about the child's health care, education and religious upbringing. Parenting plans can be quite specific, permitting each parent to be notified of the child's extracurricular activities, such as participation in a school play or Little League game. These plans can also specify which parent spends the day with the child on a holiday or birthday or during a school vacation. The more thorough and comprehensive the parenting plan, the less divorced parents have to disagree on after it is approved by the court.
  
  

When is a Parent "At Fault"?

• Although there is a strong desire to keep children from divorced families in close contact with both parents, courts will make exceptions. Limiting factors include if a parent has been charged with domestic or child abuse or if the parent has a drug and alcohol problem or mental health disorder that precludes them from being a fit caretaker. In these cases, a court may only offer supervised visitation--or sometimes none at all, if exposure to one parent would put the child at risk for physical or emotional harm.
  
  Other "faults" factor into a court's decision. There many grounds for divorce, adultery being one. How this affects child custody is arbitrary. While an accusation of infidelity may persuade a judge in a small, conservative town to give one parent preference in custody matters, it would have little effect on a court in a large, urban city.
  
  Legal professionals concur that, unlike the fictitious Kramer court, courts in 2009 are intolerant of minute accusations that make one parent appear worse than the other. In fact, the "holier than thou" parent may create a disadvantage if he unreasonably disparages his ex-spouse in a court of law. However, there are legitimate character faults that a court will consider, such as if a parent like Mrs. Kramer abandoned her child and family without warning. Among numerous factors, a lack of emotional warmth, sensitivity or parental concern are precisely what the court considers against a child's best interests.
  
  The length to which your state has embraced the movement toward shared parenting can be found in its statutes; these outline what factors a court will examine when determining your child's care. Regardless of the variances in statutory language from one state to another, a court will always act in the best interests of the child.